SHARON G. LEE, J., delivered the opinion of the Court, in which CORNELIA A. CLARK, C.J., JANICE M. HOLDER, and GARY R. WADE, JJ., joined. WILLIAM C. KOCH, JR., J., filed a concurring opinion.
During a robbery, one of the defendants shot the victim in the leg. Although the bullet passed through the victim's leg, the wound required minimal medical treatment and did not cause the victim to suffer a loss of consciousness, extreme pain, disfigurement, or impairment. The defendants were convicted of especially aggravated robbery and aggravated robbery. The Court of Criminal Appeals affirmed the convictions. We modify the convictions for especially aggravated robbery to convictions for aggravated robbery because the victim did not suffer a serious bodily injury as required by Tennessee Code Annotated section 39-13-403 (2010) and remand to the trial court for resentencing.
In the early afternoon of March 24, 2008, Terrell Westbrooks and Darnay Taper went to an apartment at Summer Trace Apartments in Memphis to illegally
After escaping, Westbrooks and Taper called 911. Memphis Police Department officers responded and found the defendants, who matched descriptions given by Westbrooks and Taper, sitting on a guardrail near the apartment complex. An officer patted down Clark and found a loaded.32 caliber Smith & Wesson pistol in his waistband. Farmer confessed that he had robbed Westbrooks and Taper and that he had fired shots at Westbrooks as he ran away.
Following a jury trial from August 31, 2009, through September 3, 2009, the defendants were convicted of the Class B felony of aggravated robbery and the Class A felony of especially aggravated robbery. The trial court sentenced them to serve concurrent sentences of eight years for the aggravated robbery and fourteen years for the especially aggravated robbery. The Court of Criminal Appeals affirmed, rejecting the defendants' arguments that the evidence was insufficient to prove that they actually took money from their victims, that the bullet wound to Westbrooks was insufficient to support an especially aggravated robbery conviction, and that the trial court erred by failing to sentence Farmer as an especially mitigated offender. State v. Farmer, Nos. W2009-02281-CCA-R3-CD, W2009-02283-CCA-R3-CD, 2011 WL 2672008 (Tenn.Crim.App. July 8, 2011).
Because the defendants were found guilty of especially aggravated robbery, the guilty verdicts replace the presumption of innocence with a presumption of guilt. On appeal, the defendants bear the burden of proving that the evidence was insufficient to sustain the verdict of guilty. State v. Hanson, 279 S.W.3d 265, 275 (Tenn.2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn.1992)). The firmly-established standard governing our review requires that "`[w]hen considering a sufficiency of the evidence question on appeal, the State must be afforded the strongest legitimate view of the evidence and all reasonable inferences that may be drawn therefrom.'" Hanson, 279 S.W.3d at 274 (quoting State v. Vasques, 221 S.W.3d 514, 521 (Tenn.2007)). All questions as to the credibility of trial witnesses, the weight and value of the evidence, and issues of fact raised by the evidence are resolved by the trier of fact, not this Court, and we may not re-weigh or re-evaluate the evidence. State v. Evans, 108 S.W.3d 231,
Since the issue before us involves the interpretation of a statute, we apply a de novo standard of review without any presumption of correctness. Lind v. Beaman Dodge, Inc., 356 S.W.3d 889, 895 (Tenn.2011). The well-settled rules of statutory interpretation dictate that our primary role is to discern and give effect to legislative intent. Walker v. Sunrise Pontiac-GMC Truck, Inc., 249 S.W.3d 301, 309 (Tenn.2008). In reaching that goal, we begin with an examination of the statute's language, Curtis v. G.E. Capital Modular Space, 155 S.W.3d 877, 881 (Tenn.2005), presuming that the legislature intended that each word be given full effect. Lanier v. Rains, 229 S.W.3d 656, 661 (Tenn. 2007). When the import of a statute is unambiguous, we discern legislative intent "from the natural and ordinary meaning of the statutory language within the context of the entire statute without any forced or subtle construction that would extend or limit the statute's meaning." State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000); see also In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn.2007) ("Where the statutory language is not ambiguous... the plain and ordinary meaning of the statute must be given effect.").
There are three gradations of robbery depending on how the crime is committed. "Robbery" is the "intentional or knowing theft of property from the person of another by violence or putting the person in fear." Tenn.Code Ann. § 39-13-401(a) (2010). "Aggravated robbery" is robbery "(1) [a]ccomplished with a deadly weapon or by display of any article used or fashioned to lead the victim to reasonably believe it to be a deadly weapon; or (2) [w]here the victim suffers serious bodily injury." Tenn.Code Ann. § 39-13-402(a)(1), (2) (2010). "Especially aggravated robbery" is robbery "(1) [a]ccomplished with a deadly weapon; and (2) [w]here the victim suffers serious bodily injury." Tenn.Code Ann. § 39-13-403(a)(1), (2). Especially aggravated robbery requires proof of both elements: use of a deadly weapon and serious bodily injury to the victim. See Stewart v. State, 33 S.W.3d 785, 792 (Tenn.2000) ("[S]tatutory phrases separated by the word `and' are usually to be interpreted in the conjunctive."). There is no dispute that the defendants used a deadly weapon during the robbery; the only issue is whether the gunshot that passed through the victim's leg was a "serious bodily injury."
"Bodily injury" is defined to include "a cut, abrasion, bruise, burn or disfigurement, and physical pain or temporary illness or impairment of the function of a bodily member, organ, or mental faculty." Tenn.Code Ann. § 39-11-106(a)(2) (2010). "Serious bodily injury" is defined as "bodily injury that involves: (A) A substantial risk of death; (B) Protracted unconsciousness; (C) Extreme physical pain; (D) Protracted or obvious disfigurement; [or] (E) Protracted loss or substantial impairment of a function of a bodily member, organ or
To resolve this issue, we must apply these definitions to the evidence of the injury presented at trial. Westbrooks did not immediately know he had been shot; he discovered it after he got outside the apartment building and noticed he had a hole in his pants. He told the jury that the bullet entered the back of his left leg just below the buttocks and exited the top part of his front thigh. He described his wound as "a straight shot, you know, just tore straight through." Westbrooks testified that once he had escaped the defendants, he sat down on a bench and the "adrenaline was still going, I wasn't feeling as much until I sat down and the blood started kind of flowing then and I could really feel it." He stated that about five minutes after he sat down on the bench, an ambulance arrived, and he was taken to the hospital where he received medical treatment for his wound. He described his medical treatment and recovery as follows:
Factor (B) was not established because there was no evidence that Westbrooks' injury involved any loss of consciousness, much less a protracted loss of consciousness. Factor (C) was not shown because there was no proof that Westbrooks suffered extreme physical pain. Admitting to the difficulty of quantifying physical pain in State v. Sims, 909 S.W.2d 46, 49 (Tenn.Crim.App.1995) our Court of Criminal Appeals applied the ejusdem generis canon of statutory construction, stating that "the enumerated portions of the definition of serious bodily injury should be read as coming from the same class of injuries." The Sims court concluded that the pain associated with the injury suffered by the victim in that case — a broken nose — is not extreme enough to be included in a class of injury that involves a substantial risk of death, protracted unconsciousness, permanent disfigurement or protracted loss, or substantial impairment of loss of a body part or mental faculty. Likewise, in the instant case, the evidence does not support a finding that Westbrooks's injury involved a degree of pain that would warrant its inclusion among the other enumerated portions of the definition of "serious bodily injury." Although Westbrooks testified that he experienced pain after realizing he had been shot, hospital records do not classify his pain as "extreme" but rather as "mild" to "moderate." Westbrooks was given a prescription for pain medication
The Court of Criminal Appeals in a two-to-one decision ruled that the State presented evidence that would allow a rational jury to find that Westbrooks's injury involved a substantial risk of death, reasoning that although there was no actual serious bodily injury, the bullet
Farmer, 2011 WL 2672008, at *5.
We respectfully disagree with this analysis. The statute provides that a serious bodily injury is an "injury that involves... substantial risk of death." Tenn.Code Ann. § 39-11-106(a)(34)(A) (emphasis added). By the plain meaning of this language, we hold that in determining whether there was a "serious bodily injury" based on a "substantial risk of death," we must look to the injury that occurred rather than the injury that could have occurred or the manner in which it occurred. As Judge Tipton correctly observed in his dissenting opinion,
Farmer, 2011 WL 2672008, at *6. Courts from numerous other jurisdictions have held similarly. See, e.g., Goans v. State, 465 So.2d 482, 482 (Ala.Crim.App.1985) (holding that a victim who was shot in the collarbone, treated, and released the same day at a hospital, and testified that the pain was "not all that bad," did not sufficiently prove "serious physical injury," as required under state's first degree assault statute); Luttrell v. Commonwealth, 554 S.W.2d 75, 79 (Ky.1977) (holding that while a gunshot victim "suffered from his wounds[,] he was not seriously injured in the statutory sense"); Williams v. State, 696 S.W.2d 896, 898 (Tex.Crim.App.1985) (providing that a "gunshot wound, although caused by a deadly weapon ... is not, per se, serious bodily injury"). Because in many cases a layperson does not have the necessary medical knowledge to determine whether a particular injury involves a substantial risk of death, expert medical testimony is frequently of critical importance in establishing that fact. The State did not, however, introduce any expert testimony that Westbrooks's injury involved a substantial risk of death, as has been done in other cases where the charged offense required such proof. See,
The State failed to present sufficient proof that the victim suffered a serious bodily injury.
WILLIAM C. KOCH, JR., J., filed a concurring opinion.
WILLIAM C. KOCH, JR., J., concurring.
I concur with the Court's conclusions that all gunshot wounds do not necessarily cause bodily injury that involves a "substantial risk of death" for the purpose of Tenn.Code Ann. § 39-11-106(a)(34)(A) (2010). I also agree that the State failed to present sufficient evidence that the particular gunshot wound Mr. Westbrooks received involved a substantial risk of death. Accordingly, I join the Court's decision to vacate Messrs. Farmer's and Turner's convictions for especially aggravated robbery and to remand for resentencing for aggravated robbery. I have chosen to write separately to highlight the important role that expert medical testimony must play in many cases in which the State must establish that the injury to the victim carried with it a substantial risk of death.
Juries play a central role in criminal proceedings. State v. Hester, 324 S.W.3d 1, 51 (Tenn.2010). They alone must assess the credibility of the witnesses, weigh the evidence, and resolve disputed issues of fact. State v. Leach, 148 S.W.3d 42, 53 (Tenn.2004). Because of the increasing complexity of the factual issues being presented to lay juries, expert testimony is now commonplace in both criminal and civil proceedings.
We have long recognized the importance of expert medical testimony in civil proceedings. However, even in cases involving medical negligence in which Tenn.Code Ann. § 29-26-115 (Supp.2011) generally requires expert evidence to prove the standard of care and breaches of the standard of care, we have recognized that expert evidence is not necessary when the violation of the standard of care is so straightforward that a layperson's common knowledge
If anything, the necessity of presenting expert medical evidence regarding whether a particular injury involves a "substantial risk of death" is more pronounced in a criminal proceeding than it is in analogous civil proceedings. Jurors in criminal cases have no greater expertise with regard to medical matters than jurors in civil cases. In addition, the State must prove every ingredient of the offense beyond a reasonable doubt. State v. McLerran, 604 S.W.2d 841, 845 (Tenn.1980); see also Tenn.Code Ann. § 39-11-201(a) (2010). Thus, except for injuries that are either so serious or so trivial that a lay person will understand that they either do or do not involve a substantial risk of death,
Other jurisdictions with statutory language analogous to Tenn.Code Ann. § 39-11-106(a)(34)(A) have already recognized that expert medical testimony is of significant benefit when determining whether an injury poses a substantial risk of death. For example, the Court of Appeals for the District of Columbia has noted that expert medical evidence is properly admitted to determine whether a particular injury is "a serious bodily injury ... that involves a substantial risk of death" when the "medical terms used in the medical records and the effects of the wounds on the victims [are] beyond the ken of the average layperson." Bolanos v. United States, 938 A.2d 672, 677, 679 n. 8 (D.C.2007). Likewise, the Kentucky Supreme Court has held that "[w]hile medical proof is not necessary," it can certainly be of assistance in establishing the severity of an injury to meet the "fairly strict level of proof" required by Kentucky's statute analogous to Tenn.Code Ann. § 39-11-106(a)(34)(A). Anderson v. Commonwealth, 352 S.W.3d 577, 581 (Ky.2011). The Oregon Court of Appeals has gone so far as to state that expert medical testimony is required in all criminal cases concerning injuries where the "substantial risk of death is not apparent to a lay person." Lambert v. Palmateer, 187 Or.App. 528, 69 P.3d 725, 730 (Or.Ct.App.2003).
Undoubtedly, there are circumstances in which a juror's "common-sense understanding"
In this case, the State sought to carry its burden of proof by presenting Mr. Westbrooks's account of his injury and the medical records regarding the treatment he received. While Mr. Westbrooks testified about his pain, he did not address the extent to which his gunshot wound was life-threatening. The medical records by themselves do not appear to address the seriousness of Mr. Westbrooks's wound. Introducing medical records without some accompanying expert explanation is a "risky and uncertain approach," Glisson v. Mohon Int'l, Inc./Campbell Ray, 185 S.W.3d 348, 354 (Tenn.2006), because the medical records themselves, and the terms used therein, may be "beyond the ken of the average layperson," Bolanos v. United States, 938 A.2d at 679 n. 8. Based on this record, the State fell far short of proving that Mr. Westbrooks's gunshot wound involved a "substantial risk of death."